With trial date looming, RIAA tries to avoid facing a jury

A file-sharing case is set for trial in three weeks, but the RIAA is …

The over 20,000 file-sharing lawsuits that have been filed over the past few years share a single distinction: not one of them has made it to trial. The RIAA is trying to keep Virgin Records, et al v. Jammie Thomas from a jury trial, filing a motion for summary adjudication on some specific aspects of the case.

What the RIAA is after is a ruling from the judge that some of the facts of the case are not in dispute. If that is the case, then there are no issues of material fact that exist to be decided, and therefore no need for a trial by jury. It's the same scenario in Novell v. SCO: all the material facts were decided by the judge last month, so there's nothing left for a jury to decide.

The RIAA is looking for the judge to rule favorably on three issues. First, it wants the judge to rule that the record labels own the copyrights to the songs allegedly shared by the defendant. Second, it wants the judge to agree that the copyright registrations are in order. Those two items may not appear to be that big of deal, but number three is a doozy.

The labels want the judge to rule that the defendant was not authorized to copy or distribute the songs flagged by SafeNet, the RIAA's investigator in this case. If the judge decides those three issues in the labels' favor, the plaintiffs believe that it "will significantly narrow" the outstanding issues and prevent the "unnecessary expense of litigating issues about which there is no dispute."

Thomas is fighting the motion, saying that the plaintiffs need to prove two things: that they are the true copyright owners and that there was an act of infringement. Thomas is confident that should the case go to trial, the verdict will go her way.

Who owns the copyright?

Thomas' attorneys also raise a number of issues about the copyright claims. As part of the original complaint, the record labels attached screenshots of the files the defendant was allegedly sharing and stipulated that they owned the copyright to those songs. But the documentation provided by the labels to support their claims of copyright ownership don't quite add up. Here are a few examples cited by the defendant:

Song

Copyright holder according to the RIAA

Copyright holder according to the certificate of registration

"Appetite for Destruction"

UMG Recordings

The David Geffen Company

"The Comfort Zone"

UMG Recordings

Polygram Records

"Control"

UMG Recordings

A&M Records, Inc.

"Frontiers"

Sony BMG

CBS, Inc.

"Let it Loose"

Sony BMG

CBS, Inc.

"Get a Grip"

UMG Recordings

Geffen Records

"Hysteria"

UMG Recordings

Mercury Records

"If You See Him"

UMG Recordings

MCA Records Nashville

Thomas argues that since she lacks the financial means to conduct a thorough examination of the ownership history (e.g., track the ownership of "Hysteria" from Mercury to UMG) for the songs she is accused of infringing the copyright to, her only opportunity to determine their true ownership is either via discovery or cross-examination at trial. With the documentation provided by the labels "questionable" and "nonconclusive," according to the defendant, her only option is to cross-examine the witnesses.

Her attorneys also note that the labels have not taken advantage of some of the deadlines in this case, including one for filing a partial summary judgment. The conclusion? "The issue involved is far too material to preclude cross examination by defendant, therefore plaintiffs’ motion should in all respects be denied."

Perhaps the biggest reason that the RIAA doesn't want this—or any other—case to go to trial is the possibility of losing. The RIAA has fought the exoneration efforts of every defendant tooth and nail, trying to simply walk away from the litigation by dismissing it without prejudice. A handful of defendants have managed to be exonerated, most notably Debbie Foster, Patricia Santangelo, and Tanya Andersen—who is now suing the RIAA for malicious prosecution.

A loss at trial would be even more catastrophic for the RIAA. It would give other defense attorneys a winning template while exposing the weaknesses of the RIAA's arguments. It would also prove costly from a financial standpoint, as the RIAA would have to foot the legal expenses for both itself and the defendant. Most of all, it would set an unwelcomed precedent: over 20,000 lawsuits filed and the RIAA loses the first one to go to a jury.

A subtle change in strategy

There is one more subtle shift in strategy on the part of the music industry. The RIAA appears to have dropped the "making available" argument in its most recent filings. It is absent from the RIAA's motion for default judgment in Interscope v. Rodriguez and, in Virgin v. Thomas, the labels are accusing the defendant of "distributing" music over KaZaA. If they can make the distribution charges stick, it will be problematic for the defendants. But given that the only cases of "distribution" ever witnessed occurred when only the RIAA's investigators were watching, it is by no means a slam dunk.

If the judge denies the RIAA's motion, there is a September 24 settlement conference scheduled. Should that fail to bear fruit—and there is no reason to think that it will—Virgin Records, et al v. Jammie Thomas is scheduled to go to trial on October 1.